HOH Systems© Terms and conditions of sale

In these conditions “the goods” means the goods indicated on any Company forms, brochures, price lists, quotations, delivery notes, orders, or invoices, including the documents of any of the Company’s transport agents. “the Company” means HOH Systems Pty Ltd and “the Customer” means the person, firm, or company entering into Contract with the Company.

1. Preliminary

All goods are sold in accordance with these terms and conditions of sale. No variation from these conditions and no contrary stipulation by the Customer shall be valid unless specifically accepted by us in writing.
These conditions apply to all sales of goods whether or not such sales are pursuant to orders by telefax, cable, e-mail, or orders placed with representatives or agents on behalf of the Company.
These conditions take precedence over any other terms and conditions which may be contained in any Company forms, price lists, quotations, delivery notes, orders or invoice s including the documentation of any of the Company’s transport agents.

2. Price

The price of the goods shall be the usual price current at the time of the despatch of the goods.
Company price lists shall be considered merely as a guide by the Customer and the Company has the right, from time to time, for any reason and without notice to the Customer, to change the prices of its goods without reflecting such changes on any price lists.

3. Payment

Payment is to be made as per the terms stated on the Company’s invoice. No rebates or discounts may be claimed or taken unless the Company shall have received payment within the payment period specified above and the Company agreed to such discount in writing.
In all cases where the Customer uses a postal, banking, electronic or similar such service to effect payment, such services shall be deemed to be the agent of the Customer.
Should any amount not be paid by the Customer on due date then the whole amount in respect of all purchases by the Customer shall become due, owing and payable irrespective of the dates when the goods were purchased and the Customer shall be liable to pay interest in respect of amounts unpaid as at the due date at the compound rate of 2% above the prime overdraft lending rate of the Company’s Bankers on all overdue amounts from due date until date of payment, calculated and payable monthly in advance and should the said interest not be paid in full as aforesaid, the same shall be added to the principal sum, and the total shall form the principal debt which shall then bear interest in the manner as set out above.
The Customer shall not be entitled to claim set off or deduction in respect of any payment due by the Customer to the Company for goods or services supplied.
The Company may appropriate all payments made by the Customer to such accounts as it will in its sole and absolute discretion decide.
The Company shall have the right to suspend deliveries and to exercise its rights in terms of clause 6 & 7 (recover possession of goods) if any amount due by the Customer is unpaid.
The Customer shall not be entitled to counter claim against the Company for a debatement of account to frustrate making payment to the Company. Furthermore, the Customer undertakes to keep a comprehensive set of books at all material times from which it will be able to ascertain its liability to the Company without the need for any debatement.
In the event of the Customer disputing the total amount owing by it to the Company on its account, such portion of the amount owing which is not in dispute shall be paid forthwith. A dispute over portion of the total amount owing will not give the Customer any right to withhold payment of the total.

4. Orders

Orders by the Customer for the Company’s goods or services, shall be made in writing to such address, “virtual”, electronic or otherwise, as may be nominated by the Company from time to time.
Orders shall constitute irrevocable offers to purchase the goods in question at the usual prices of the Company and shall be capable of acceptance by the Company by the delivery of the goods or by the written acceptance or confirmation of the order.
Oral orders shall similarly be capable of acceptance by the Company, but the Company will not be responsible for any errors or misunderstandings occasioned by the Customer’s failure to make orders in writing.
The Customer shall provide the Company with an order or reference number when placing any order with the Company.
Orders accepted by the Company shall not be varied or cancelled by the Customer, except with the written consent of the Company.

5. Delivery

In the event that the Company transports the goods to the Customer, delivery and passing of the risk in the goods, shall be deemed to have taken place when the goods are on-loaded to the transport vehicle. The signature of any employee of the Customer on a Company delivery note or invoice shall be prima facie proof of the proper delivery of the goods.
In all cases where delivery to the Customer occurs by carrier, the carrier shall be the Customer’s agent, and delivery to such carrier by the Company shall be deemed to be delivery to the Customer. The signature of any employee of the carrier shall be prime facie proof of proper delivery to the Customer.
Delivery of goods to any delivery address provided by the Customer, shall constitute proper delivery of the goods, even though such address may not have been the address or premises of the Customer.
Whilst every effort will be made to despatch goods as advised, the Company does not guarantee despatch on any specific date and shall not be liable for any damages for failure to effect delivery/despatch timeously for any reason beyond the Company’s reasonable control, including but not limited to, inability to secure transport, labour, power, materials, equipment or supplies or by reason of an act of God, war, civil disturbance, riot, state of emergency, strike, lockout or other labour disputes, fire, flood, drought or legislation. The Customer shall not be entitled to cancel any order by reason of such delay.
In the event that the Company makes delivery to the Customer in instalments each instalment shall be deemed to be the subject of a separate contract and non-delivery or delay in delivery of any instalment shall not affect the balance of the contract or entitle the Customer to cancel the contract.
When goods are delivered in instalments, invoices relating to separate deliveries shall be paid 30 days from invoice date and no payment shall be postponed until such time as all the goods ordered have been delivered.
The Customer will be liable for payment of all fees, charges, expenses and the like due to the said carrier in respect of the transport of the goods to the Customer.
Should the Company, at the Customers request, agree to engage a carrier to transport goods to the Customer, such carrier shall be the Customer’s agent and the Company shall engage the carrier on such terms and conditions as it deems fit and the Customer indemnifies the Company against all demands and claims which may be made against it by the carrier so engaged and all liability which the Company may incur to the carrier arising out of the transportation of the goods.
If the Customer fails to take delivery of the goods ordered, or in any way delays the delivery of goods ordered, then the risk in the goods shall immediately pass to the Customer and the Customer shall be liable to pay the Company the reasonable costs of storing, insuring, and handling the goods, until delivery takes place.
The Customer shall be barred from lodging any claim in respect of discrepancies between goods charged and goods delivered, unless the Customer has specified on the delivery note, the nature of the discrepancy.

6. Ownership & Risk

Notwithstanding that all risk in and to all goods sold by the Company to the Customer shall pass on delivery, ownership in all goods sold and delivered shall remain vested in the Company until the full purchase price has been paid and in the event of a breach of these terms and conditions by the Customer, or if the Customer is sequestrated or placed under liquidation or judicial management or commits any act of insolvency or enters into any compromise with its
creditors or fails to satisfy a judgment granted against it within 7 days of the date of judgment or changes the structure of its ownership, the Company shall be entitled to take possession of the goods without prejudice to any further rights vested in the Company and is hereby irrevocably authorised to enter upon the Customer’s premise s to take possession of such goods without Court order.
In the event of the Customer obstructing the Company in the process of removing its goods from the Customer necessitating the obtaining of a Court order, the Company shall be entitled to obtain an award of costs against the customer on a punitive scale.
Furthermore, the Customer shall have no claim against the Company for damages caused due to loss of profits or otherwise occasioned by the removal of goods from the Customer’s premises as aforesaid notwithstanding that such removal was effected without Court order.
Goods in the possession of the Customer bearing the Company name, trademarks and labels shall be deemed to be those for which payment has not yet been made, and should any breach of these terms occur, may be repossessed by the Company.
The Customer shall fully insure the goods purchased from the Company against loss or damage, until the full purchase price has been paid by the Customer for such goods. Pending payment to the Company for goods purchased, all benefits in terms of the insurance policy relating to such goods are ceded to the Company.
It shall not be necessary for the Company to prove either to the Customer or the Customer’s liquidator or trustee which goods owned by or formerly in the possession of the Company have actually been paid for and which have not been paid for.
The Company shall be entitled to identify its goods merely by way of packaging and other distinguishing marks. The Company shall not be obliged to identify its goods by way of serial numbers or any other form of intricate identification.
Specifically, the Company shall be entitled to remove all goods of whatsoever nature owned by it from the Customer’s premises notwithstanding that certain of such goods removed may have been paid for. The rationale for permitting the Company to act in this manner is due to the fact that the Customer’s account is in debit and after a reconciliation thereof, should it emerge that with the recovery of all goods on the premises of the Company, the said Company is due a credit, such credit shall be passed.

7. Legal proceedings

Regardless of the place of execution or performance under these terms and conditions or domicile of the Customer, these terms and conditions and all modifications and amendments hereof, shall be governed by and decided upon and construed under and in accordance with the laws of the Republic of South Africa.
The Company shall, at its option and notwithstanding that the amount of its claim exceeds the jurisdiction of the Magistrate’s Court, be entitled to institute action out of such court.
A certificate issued and signed by any director or Credit Manager of the Company, whose authority need not be proved, in respect of any indebtedness of the Customer to the Company or in respect of any other fact, including the fact that such goods were sold and delivered, shall be prima facie evidence of the Customer’s indebtedness to the Company and prima facie evidence of such other fact and prima facie evidence of the delivery of the goods.
The Customer’s physical address as given on the front page of this document or Contact page on website, shall be recognised as the Customer’s domicilium citandi et executandi (domicilium) for all purposes in terms of this agreement, whether in respect of the serving of any court process, notices, the payment of any amount or communications of whatever nature.

7.1 Disputes

All disputes arising out of or relating to this agreement in respect of the meaning or interpretation of any word, provision or Clause of this agreement, shall first be resolved or attempted to be resolved by the parties through bona fide discussion within one month of such dispute having been declared by any of the parties.
Subject to Clause 7.1 being exhausted, any dispute arising out of or relating to this agreement in respect of the meaning or interpretation of any word, provision or Clause of this agreement will be referred to arbitration. Either party to the dispute will be entitled to require, by written notice addressed to the other party to this agreement in which notice particulars of the nature of the dispute be given, be submitted to mediation or arbitration (as the case may be) in terms of this Clause.
Subject to the provisions of this paragraph, the arbitration will be held under the provisions of the arbitration laws for the time being in force in the Republic of South Africa (as it is constituted from time to time).
The arbitrator will be an independent person agreed upon by the parties to the dispute and, failing such agreement within five business days after the date on which the arbitration is requested, the dispute will be referred to either the Afrikaanse Arbitrasie Genootskap (AAG) or the Arbitration Foundation of South Africa (AFSA) who shall be requested to suggest a list of at least three arbitrators. The parties shall then agree on an arbitrator, failing which the president of the AAG or AFSA, as the case may be, shall be requested to appoint an arbitrator.
Immediately after the arbitrator has; been agreed upon or appointed, the party who has given the notice shall request the arbitrator to nominate a date and place when and where the arbitration proceedings will be held within Gauteng, South Africa and to settle the procedure and manner in which the arbitration proceedings will be held.
The arbitration will be held in Johannesburg, Gauteng in accordance with the formalities and procedure settled by the arbitrator, and may be held in an informal and summary manner, on the basis; that it will not be necessary to observe or carry out the usual formalities or procedures, pleadings and discovery or the strict rules of evidence.
In the absence of an agreement between the parties or a ruling by the arbitrator, a party wishing to use any document, photograph, audio or video tape recording, or any other exhibit of a like nature (referred to in this Clause as “the exhibits”) must furnish particulars thereof to the arbitrator and the other party to the arbitration no later than ten business days prior to the hearing fixed for the arbitration. The notice giving particulars must include an address at which the exhibits may be inspected and the party giving notice must, if requested to do so by the other party, provide a copy of any of the exhibits. The cost of making such copy will be costs in the arbitration.
The arbitration will be held as soon as possible after it is requested with a view to it being completed within one month if possible, after it has; been so requested.
The arbitrator will be entitled to make such award, including an award for specific performance, an interdict, damages or a penalty or otherwise as he in his sole discretion may deem fit and appropriate and to deal as he deems fit with the question of costs, including, if applicable, costs on the attorney and client scale, or attorney and own client scale, including costs of counsel and his own fees.
Any award made by the arbitrator:
will be final and binding on the parties to the agreement; and
may be made an order of any court to whose jurisdiction the parties are subject.
The Sub-Clauses aforestated of this Clause will not preclude either party from obtaining intermediate relief on an urgent basis from any court of competent jurisdiction.

8. Returned goods

Goods sold by the Company are not returnable save at the option of the Company. Should the Company in its absolute discretion elect to accept the return of any goods, the following shall apply:
All goods returned must be complete, clean, saleable, and undamaged and in their original packaging.
The value of credit for goods returned will be calculated at the invoice value when the goods were purchased, less 10% handling charge.
the Credit Control Department must be notified of relevant invoice, packing slip and batch numbers before any claim will be considered.
All goods are to be returned at the Customer’s expense and the risk in the goods remains with the Customer until the goods are received by the Company.

9. Warranties & Indemnity

Warranty on the goods is limited to the manufacturer’s warranty for any component, part or material. Maintenance and Inspection sheets must be submitted with warranty claims. Maintenance and Inspection sheets must be completed daily and submitted via recorded and acknowledged electronic communications weekly for Water Treatment or Management and Processing Systems that are under warranty. All other warranties either express or implied, including any warranty that the goods are fit for a particular purpose are expressly excluded. The Company’s liability for any breach of warranty shall be limited to and fully discharged by the Company when it supplies, free of charge, goods replacing those found to be defective, having regard to the use already or previously obtained from them. The company’s decision as to whether goods are defective or not shall be binding on all parties.

The Company disclaims all liability to the Customer in connection with the Company’s performance or the Customer’s use of the goods supplied and in no event will the Company be liable to the Customer for special, indirect or consequential damages including but not limited to, loss of profits. Any liability of the Company for breach of contract will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to the Customer, the total price paid or due to be paid by the Customer for the services rendered or goods supplied.
The Company gives no warranty, express or implied, nor any representation that the goods sold by the Company are suitable for the purposes for which they have been ordered.
Any advice or opinion given by the Company’s employees is for the Customer’s benefit and discretion and the Company accepts no responsibility for any damages that the Customer may incur as a result of the Customer relying upon such advice.

The Company reserves the right to make use of Contractors to perform services in furtherance of the performance of its obligations under Customer orders.

The Company will make use of various design and engineering programs utilizing information supplied, assumed or calculated and will at no time be responsible for errors made by such calculators, operators or programs.

10 General

The Company reserves the right in its sole discretion to vary or amend these terms and conditions from time to time and any such amended or varied terms and conditions shall be binding on the Customer from the time that the Customer is notified thereof. Any subsequent dealings shall be on the Company’s amended terms and conditions.
This contract represents the entire agreement between the Company and the Customer and shall govern all future contractual relationships between the Company and the Customer and shall also be applicable to all debts which the Customer may owe to the Company prior to the Customer’s signature hereto.
No amendment and/or alteration and/or variation and/or deletion and/or addition and/or cancellation of these terms and conditions, whether consensual or unilateral or bilateral shall be of any force and effect unless reduced to writing and signed by a director of the Company. No agreement, whether consensual or unilateral or bilateral, purporting to obligate the Company to sign a written agreement to amend, alter, vary, delete, add to or cancel these terms and conditions shall be of any force and effect unless reduced to writing and signed by a director of the Company.
No warranties, representations or guarantees have been made by the Company or on its be half which may have induced the Customer to sign this document.
No relaxation or indulgence which the Company may give at any time in regard to the carrying out of the Customer’s obligations in terms of any contract shall prejudice or be deemed to be a waiver of any of the Company’s rights in terms of any contract.
The Customer shall not cede its rights nor assign its obligations.
The Company shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of this application for credit facilities including all terms and conditions to any third party without prior notice to the Customer.
The Customer undertakes to notify the Company within a period of 7 (seven) days of any change of address or any changes in the information as set out in this agreement.
The headings in this document are included for convenience and are not to be taken into account for the purpose of interpreting this agreement.
Each of the terms herein, shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then that term shall be severable and shall not affect the validity of the other terms.
Provided that they do not conflict with any of the terms and conditions contained herein, such general practices, terms and conditions applicable to the industry or profession in which the Company conducts business shall be applicable to all dealings between the Company and the Customer.

11. Disclaimer

The Company accepts no responsibility for damages or other losses, directly or indirectly caused, to the Customer in connection with the Company’s services and the performance of same arising from the Customer’s order.

12. Forcemajeure

Every effort will be made to carry out the Customer’s order by the Company but the due performance thereof is subject to cancellation by the Company or variation of such order as may be required due to the inability of the Company to secure labour, materials or supplies as a result of any act of God, war, strike, lock-out, labour dispute, fire, flood, drought, legislation or other cause beyond the control of the Company.